Government publish discrimination guidance on ‘right to rent’ immigration checks

Guidance picThe government’s new laws requiring Landlords to carry out immigration checks on new tenants will be coming into full legal force in Birmingham and surrounding areas from the 1st December 2014. These checks will involve tenants having to prove that they have lawful status in the UK which gives them the right to rent a property.

The Government’s publicised aim in imposing the new restrictions is to ‘deter illegal immigration and prevent illegal immigrants from accessing our finite housing stock and displacing lawful residents’.

However, to back up this aim, and prevent lawful migrants (or even British citizens) from being unlawfully discriminated against by Landlords, the government have provided guidance to Landlords on how to avoid discriminatory action.

Whilst renting a property to a tenant who does not have the right to rent, can result in civil fines of up to £3,000 per tenant, if a Landlord were to refuse to rent a property to a tenant, who did have the right to rent, they could face a discrimination claim with liability to uncapped damages, orders to pay court costs for the other side, and negative publicity.

The Equality Act 2010 names certain ‘protected characteristics’. Of particular concern for landlords carrying out checks, will be that they do not discriminate on the basis of the ‘protected characteristic’ of race. Race and racial grounds include ‘colour, nationality, and ethnic or national origins’.

The Act protects against ‘direct’ and ‘indirect’ forms of discrimination.

An example of direct discrimination would be, for example, to refuse to rent a property to a person because they do not hold a particular nationality (e.g. because they are not British).

An example of indirect discrimination would be where, although a particular measure applies to everyone, it disproportionately affects a particular group. An example given in the guidance is where there is a requirement that a tenant has lived in the UK for at least 5 years (as this would be more difficult for migrants to establish then a UK citizen).

The Codes of Practice confirms:

“The equality laws are there to protect everyone. Landlords are advised to conduct immigration status checks in a consistent and fair manner in relation to all prospective tenants to protect themselves from claims of discrimination and to keep records of checks made. If a prospective tenant will not co-operate with the checks, landlords should explain that they are undertaking these checks to protect themselves in law. Should the tenant still fail to co-operate, landlords are not breaching any law by looking to other tenants to fill their accommodation.”

In order to avoid the risk of a discrimination claim, the following basic steps should be taken by all Landlords entering into a new agreement in the relevant pilot areas after the 1st December 2014:

• Make sure that you apply checks to ALL prospective tenants, regardless of nationality, colour or ethnicity
• Keep a record of all the checks that you have carried out, including a copy of any documents relied upon to establish that checks have been carried out properly
• Do not introduce any criteria when deciding who to rent to which will disproportionately affect a particular group more than others (for example a long residence requirement)
• Ensure that any decisions to rent a property to a particular tenant are not influenced by considerations of race or a desire to avoid having to undertake checks on the Immigration Status of a tenant, as this could leave you liable to facing a discrimination claim

Right2Rent can fulfil all the obligations faced by Landlords on their behalf, including taking on liability for any civil fines and ensuring checks are carried out by a leading firm of Immigration Solicitors. If you would like further information regarding the services we can offer, please contact us at enquiries@right2rent.co.uk or submit a ‘new check’ request on our website, www.right2rent.co.uk.

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Important Update

As of the 1st July 2021 we are no longer able to carry out manual checks on EU nationals to confirm a right to rent.

From 1st July 2021, the majority of EEA citizens will prove their right to rent using the Home Office online service. Those who have made a successful application to the EU Settlement Scheme will have been provided with an eVisa and can only prove their right to rent using the Home Office online service ‘prove your right to rent in England’ available on GOV.UK: https://www.gov.uk/prove-right-to-rent.

To prove their right to rent from 1st July 2021, individuals will provide landlords with a share code and their date of birth which will enable landlords to check their Home Office immigration status via the online service available on GOV.UK: https://www.gov.uk/view-right-to-rent.

We are still able to carry out manual checks for non EU nationals and family member of EU nationals in some instances, if you are unsure whether your prospective check meets this criteria please contact right to rent at enquiries@right2rent.co.uk.